Acknowledging the Human Factor

I am writing this in a hurry. It could and should have been done some time over the last few days, but I have been afflicted with a bit of a medical problem which, while quite minor, has been a source of persistent physical discomfort. This has militated against two elements of the writing process: sitting still (emphasis on sitting) and composing the mind. It has been all too easy to conclude that it would be wise to put off the writing until I was feeling better. Which is what I have done.

Of course it is not always possible to put something off, simply because we are not feeling our best. I once sat in a Supreme Court trial watching a distinguished judge carry on despite, I thought, evident signs of physical distress. The poor fellow brought a small cushion with him in the morning and spent a good deal of the day wincing in discomfort and shifting in his seat. "Piles," I thought, "Haemorrhoids! That’s got to make a ten-day trial an agony." What effect, one wondered, does a judge’s indisposition have on the process of delivering justice? How much is down to the human factor?

Actually, the ‘human factor’ had been an issue in this trial even before it began. The alleged crime had been an act of great physical violence and the defendant, not to put too fine a point on it, was a huge man and, somehow, a dangerous looking character. His lawyers had decided from the start that a jury was likely to find him ‘scary’, so he had waived his right to trial by jury and the verdict would be given by the judge sitting alone. A judge would not be easily swayed by appearance, it was thought. But would a judge ‘sitting’ in pain for ten days be the best of arbiters?

His Honour did indeed show some signs of being out-of-sorts at times. The defendant was represented by a well-known QC of the day, acting pro bono for a client whose background and multiple social disadvantages made him a suitable candidate for some professional charity. Unfortunately, the QC was inclined to wax eloquent at times, drawing from His Honour several reminders that there was no jury to perform to, that the judge would be perfectly satisfied if he would confine his remarks to the facts. Perhaps the judge would have taken that line anyway. Perhaps a little judicial testiness is a standard and appropriate way of dealing with high-flying lawyers. But perhaps his state of mind was influenced by his physical state, too. The prosecutor, a young talent at the time but subsequently a highly successful, almost legendary, senior prosecutor, gave the judge no such irritations. With apparent artlessness, he would rummage through his pile of papers until he found the exact point of evidence that he thought he had recalled, so matter-of-fact that the whole courtroom, let alone the judge, had to feel that, yes, there it was in black and white. The skills of lawyers, and their aptness to the occasion, are also among the human factors that shape the outcomes of trials.

At the end of the day, I thought that justice was done. The judge’s summing up was precise and telling, the 11 years he handed down seemed reasonable in the circumstances. Long experience, the habits of legal discipline and a fine judicial mind had won out over the irritability and distraction that physical discomfort might potentially have brought to the fore. Few of us, however, have those qualities in abundance. For many of us, a headache, a domestic argument in the background, or a simple bad mood that we cannot quite account for, will affect our judgement more than we like to admit. The human factor enters largely into all our affairs. In daily life there are many occasions when we need to allow, in regard to others, that he or she may be having a bad day. In regard to ourselves, we have to be watchful that our mood isn’t dominating our behaviour. We are very imperfect judges, of ourselves and of others, when we are below par. It is the perennial ‘human factor’. We live with it. We always have to take it into account. And sometimes we have to admit that all we can do is wait until we are feeling better able to be fair and reasonable.

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